State v. Schaal, No. 73111

Decision Date09 April 1991
Docket NumberNo. 73111
PartiesSTATE of Missouri, Respondent, v. Larry SCHAAL, Appellant. Larry SCHAAL, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

Blackmar, C.J., withdraws Concurring Opinion previously

filed and files Modified Concurring Opinion.

Judith LaRose, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

At issue in this case is the constitutionality of Section 492.304, RSMo 1986, which permits the trial court to admit into evidence a statement of a child victim of specified crimes. Convicted of rape, in violation of Section 566.030, RSMo 1986, appellant Schaal claims that Section 492.304 is facially unconstitutional in that it violates his rights to confrontation and due process as guaranteed under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, sections 10 and 18(a) of the Missouri Constitution. In addition, Schaal contends that Section 492.304 is unconstitutional as applied in this case in violation of his rights to confrontation under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 10(a) of the Missouri Constitution. While these constitutional challenges form the basis for our original appellate jurisdiction, Mo. Const. art. V, sec. 3, Schaal raises two additional points, the first assigning error to the trial court's refusal to continue the trial and the second challenging the sufficiency of the evidence to support his conviction. We also address his appeal of the denial of his Rule 29.15 motion, which is consolidated with the appeal on the merits of the conviction.

The judgments of the trial court and the post-conviction hearing court are affirmed.

I.

We view the facts in the light most favorable to the verdict. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983). Schaal began dating L.L. in July, 1986. Seeing L.L. daily for almost three months, Schaal also developed a close relationship with L.L.'s two daughters, L__, then age 7, and M__, then age 3. Appellant became very possessive of L__, frequently requesting that she sit on his lap. Once, when Schaal, L.L. and her daughters went camping, Schaal wrapped his nude body around L__ as she slept. On another occasion, appellant placed his finger in L__'s vagina and sexually molested her sister, M__.

One weekend in early October, 1986, L__ spent the night with Schaal at his home. While L__ was taking a bath, Schaal came to the bathroom door and threw a towel onto the toilet. L__ got out of the tub, put on the towel, and came into the kitchen where Schaal had gone. Schaal told her to take off her towel; she refused. Schaal then removed L__'s towel as well as his own clothes and had sexual intercourse with her. The next day, L__'s mother discovered blood on L__'s underwear.

On October 17, Schaal showed L__'s mother pictures he had taken earlier of both L__ and M__. These pictures included depictions of L__ posing in her underwear and one of L__ sitting nude in a chair, with "her legs drawn up and her privates ... showing." Upon seeing the pictures, L.L. became very upset and terminated her relationship with Schaal three days later.

On November 21, 1986, a pediatrician examined L__. The physician found that L__'s vaginal area was abnormal in that her vaginal opening had been stretched and her hymen was stretched and torn. These physical manifestations indicated that L__ had been penetrated.

On December 1, 1986, L__ began counseling with Dr. Herndon Snider, a psychologist. On April 28, 1987, Dr. Snider made a video tape in which L__ told of her sexual intercourse with appellant. No attorney was present at the making of the tape; only L__ and Dr. Snider could be seen or heard on the tape, although L__'s mother, L.L., was present in the room as the video was made. At one point near the end of the interview, the video tape was stopped and reviewed by L__. Dr. Snider then restarted the tape and L__ told of the pictures Schaal had taken of her as well as his earlier molestation of her sister, M__, and herself. The record reveals that several days before the making of this video tape, Dr. Snider had tried to video tape an interview with L__. That effort ended without a usable video tape being made, as L__ was uncomfortable discussing these topics before a camera. Dr. Snider recorded the second video tape over the aborted first recording.

Schaal moved to suppress the admission of the video tape. At a pretrial hearing, the trial court viewed the tape and made a finding that the requirements of Section 492.304 had been met. The trial court also found that L__ had not been led to make any particular statement. Based on these findings, the trial court overruled Schaal's motion to suppress the video tape. At trial, the prosecution played the tape a single time for the jury. Although L__ was available to testify, neither the state nor Schaal sought her live testimony. Dr. Snider did testify at the trial.

The jury convicted Schaal of rape. The trial court, having found Schaal a prior offender, Section 558.016.2, RSMo 1986, and on the strength of Schaal's prior conviction for attempted rape, a persistent sexual offender, Section 558.018.2, RSMo 1986, sentenced Schaal to thirty years imprisonment without possibility of parole. Schaal appealed. He also filed a timely Rule 29.15 motion, which the motion court overruled. The appeals are consolidated for review purposes here.

II.

Direct Appeal

A.

Section 492.304, RSMo 1986, states:

1. In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of twelve who is alleged to be a victim of an offense under the provisions of chapter 565, 566 or 568, RSMo, is admissible into evidence if:

(1) No attorney for either party was present when the statement was made;

(2) The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

(3) The recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;

(4) The statement was not made in response to questioning calculated to lead the child to make a particular statement or to act in a particular way;

(5) Every voice on the recording is identified;

(6) The person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party;

(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence, and

(8) The child is available to testify.

2. If the electronic recording of the statement of a child is admitted into evidence under this section, either party may call the child to testify and the opposing party may cross-examine the child.

3. As used in this section, a nonverbal statement shall be defined as any demonstration of the child by his or her actions, facial expressions, demonstrations with a doll or other visual aid whether or not this demonstration is accompanied by words.

1.

First, Schaal argues that his inability to cross-examine L__ at the time of the making of the videotape violates the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution. The Sixth Amendment, as applied by the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees appellant the right "to be confronted with the witnesses against him." Article I, Section 18(a) of the Missouri Constitution provides, "That in criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face." The confrontation rights protected by the Missouri Constitution are the same as those protected by the Sixth Amendment of the United States Constitution. State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991).

Appellant relies on Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). In Coy, the court found that an Iowa statute permitting a child victim to testify behind a screen, out of direct sight of the defendant, violated the Sixth Amendment. Craig held that the Sixth Amendment right of confrontation is not absolute and may be abridged when "necessary to further an important public policy [but ] only where the reliability of the testimony is otherwise assured." Craig, 497 U.S. at ----, 110 S.Ct. at 3166. Craig upheld a statute permitting a child witness to testify from outside the courtroom, following a finding by the trial court that the child would be so emotionally distressed as to be unable to communicate in the presence of the defendant. 497 U.S. at ----, 110 S.Ct. at 3161.

In this case, appellant argues that section 492.304 is unconstitutional because it requires no special finding that the child would be disabled by emotional distress. Coy and Craig are inapposite. Those cases illuminate the extent of the right to confrontation at trial. This case involves a different factual milieu. Here we consider the use of an out of court statement where the witness is fully available at trial. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) addresses this question more directly:

Confrontation: (1) insures that the witness will give his statements under oath--thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; (3) permits the jury that is to decide...

To continue reading

Request your trial
117 cases
  • State v. Kinder
    • United States
    • Missouri Supreme Court
    • December 17, 1996
    ...It is well-established that the decision to grant or deny a continuance is within the sound discretion of the trial court. State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). Moreover, a very strong showing is required to......
  • State v. Wise
    • United States
    • Missouri Supreme Court
    • June 21, 1994
    ...to commit the crime charged without proof that the other person "committed some act directly connecting him with the crime." State v. Schaal, 806 S.W.2d 659, 669 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992); State v. Easley, 662 S.W.2d 248, 251-52 (Mo.......
  • State v. Chambers
    • United States
    • Missouri Supreme Court
    • December 20, 1994
    ...denying the subsequent motion. The decision to grant or deny a continuance is within the sound discretion of the trial court. State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). A very strong showing is required to prove ......
  • State v. Taylor
    • United States
    • Missouri Supreme Court
    • April 29, 1997
    ...of a deal with Willie Owens. The decision to grant or deny a continuance is within the sound discretion of the trial court. State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). A very strong showing of abuse and prejudice ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT